At the circuit, I was of the opinion that the case was to be controlled by the contract between the plaintiff and the rail road companies, and that the contract was, simply that the plaintiff, for the consideration of $5, should have a seat and be conveyed in the first class cars from New York'to Buffalo by the Hudson river and the New York Central Bail Boads, in case he availed himself of the contract within three days, and made the journey by a continuous trip. It was assumed that the agent selling the ticket had authority to bind the Hudson river and New York Central roads, and the question was made to turn upon the contract. The ticket was produced and given in evidence by the plaintiff, and it furnished the evidence of the contract. It was the only evidence furnished by the plaintiff to the defendant of the right of the former to remain in the cars. The defendant recognized the contract, and claimed that it gave to the plaintiff no right to a seat and passage in the cars, at that time. If the ticket is to bn^regarded as the evidence of the contract, and the contract whs not illegal, then I confess that I am unable to take any other view than that taken at the circuit. The contract conferred upon the plaintiff a right of passage, to be exercised within three days, and during a ' continuous trip, only.
The plaintiff took a seat in the cars and was carried to Albany. Instead of proceeding on to Buffalo in the cars of the New York Central Bail Boad Company, he left the cars, remained in Albany six or seven days, and then took the cars and claimed the right, under the contract, to be carried to Buffalo. He certainly ha,d no such right qnder the contract, *559as I construe it. Had the rail roads the right to make such contract ? Was the contract legal ? I confess I am not able to see any reason why they had not the right to make such contract, and why it was not legal. They were common carriers of passengers, and had a right to make any special contract not unreasonable and illegal. May not common carriers of passengers say, to-day, or this week, we will carry you, a passenger, over our route, for a sum specified, though to-morrow, or next week, our price may be double the sum we will now accept ? If this right is taken away from rail road companies, or common carriers, what power will they have to protect themselves against overloading ? It is claimed that having once received the fare established at any given time, for a passage from one place to another, the person paying the fare will be entitled to the passage at any future time, whatever may have been the terms of the contract, as to the time within which the passage should be made. Establish this as a principle, and the right of passage may be claimed by such numbers upon a particular day or occasion, as to render it impossible for the carrier to perform his contract. The contract for passage may be made at a time when the fare, by the stage, or cars, is very low, and its execution be claimed at a future time when the reasonable fare is much higher; or the tickets may be purchased, as in this case, when competing roads have reduced temporarily the fare, and the passage may be claimed weeks or months after the fare has been greatly increased. In short I know of no reason why the carrier may not, by agreement, provide that the passage shall be made within a time specified and in one continuous trip. As it is the duty of a common carrier to carry the passenger, the terms of the contract as to the time and the trip should be reasonable.
In Cheney v. Boston and Maine Rail Road Company, (11 Met. 121,) the plaintiff purchased a ticket for a passage from Dunham to Boston. It was a rule of the defendant, that a passenger should go through in the same' train of cars. The *560plaintiff, after taking his seat, was so informed, and remonstrated. He stopped at an intermediate place, and went aboard of the next train and was required to pay fare again. The action was for money had and received, and for breach of contract. The court held that the plaintiff could not recover. This case is, in principle, in point. (See also Pierce on Am. Rail Road Law, 491.
[Erie General Term, May 14, 1860.If I am right as to what the contract was, and that it was not illegal, then the plaintiff was not rightfully in the car after refusing to pay fare, and the conductor was right in removing him. (Sess. Laws 1850, p. 231, § 35.) I have examined Quimby v. Vanderbilt, (17 N. Y. Rep. 306,) cited by the plaintiff’s counsel, and the effect here given to the ticket as evidence of the contract is not in conflict with the opinion in that case.
The motion for a new trial must be denied.
Marvin, Davis and Grover, Justices.]